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Terri Schiavo and the Law

Updated March 21, 2005 12:01 a.m. ET

If there have been no surprises since the time we went to press last night, today will be Terri Schiavo's fourth day without food or water. By the end of the day, both Houses of Congress are expected to have passed, and President Bush is expected to have signed into law, a bill that will allow a federal court to review her case. The hope is that a federal judge will order that her feeding tube be reinserted.

And then it will be off to the races again as her case works its way through the federal judiciary, perhaps all the way to the Supreme Court. In Florida so far, at least 19 judges in six courts have weighed in on Mrs. Schiavo's case since 1990, when she suffered the heart attack that left her severely brain damaged.

Since then her parents have been locked in a highly public legal battle with her husband, Michael, who says that Terri would not have wanted to live in an incapacitated state. Mrs. Schiavo was a practicing Catholic and she left no living will, but a Florida judge years ago agreed with Mr. Schiavo -- a finding of "fact" that has made the subsequent appeals difficult.

Another judge might look differently today on Mr. Schiavo's right-to-die claims given his apparent incentives to be rid of the burden of a severely disabled wife. He lives with a girlfriend, with whom he has children. It was not until 1993, after a medical-malpractice jury awarded him roughly $1 million for Terri's long-term care, that he began to seek his wife's death.

A Florida court has twice before ordered Mrs. Schiavo's feeding tube removed -- in 2001 and 2003. Six days after the latter episode, the Florida legislature passed "Terri's Law," which allowed Governor Jeb Bush to intervene. Last year the Florida Supreme Court ruled that Terri's Law was unconstitutional.

We review this history both to show how poorly Florida's legal system has served Mrs. Schiavo, and to explain the reasons that Congress is taking the extraordinary step of intervening in what normally would be considered a matter solely for a state's judicial system. The conservative Republicans leading this effort -- Senators Bill Frist and Rick Santorum, Representative Tom DeLay -- are taking hits for supposedly abandoning their federalist principles.

We'd have more sympathy for this argument if the same liberals who are complaining about the possibility of the federal courts reviewing Mrs. Schiavo's case felt as strongly about restraining the federal judiciary when it comes to abortion, homosexuality, and other social issues they don't want to trust to local communities. In any event, these critics betray their lack of understanding of the meaning of federalism. It is not simply about "states' rights." Conservatives support states' rights in areas that are not delegated to the federal government but they also support federal power in areas that are delegated.

Think of an analogy to the writ of habeas corpus. As John Eastman of the Claremont Institute points out, "We have federal court review of state court judgments all the time in the criminal law context." The bill before Congress essentially treats the Florida judgment as a death sentence, warranting federal habeas review. Mrs. Schiavo is not on life support. The court order to remove the feeding tube is an order to starve her to death. Moreover, Mrs. Schiavo is arguably being deprived of her life without due process of law, a violation of the 14th Amendment that Congress has the power to address.

The "right to die" has become another liberal cause, part of the "privacy" canon that extends through Roe (abortion) and Lawrence (homosexuality) and the Ninth Circuit's views on assisted suicide that the Supreme Court is taking up this year. Of course, it gets a little messy when someone is actually being killed, and a husband with a conflict of interest is the one who claims she wanted to kill herself, but the left apparently believes these are mere details that shouldn't interfere with the broader cause. Thus the discovery of federalism.

Terri Schiavo's case is a tragedy for her and her family. Beyond the immediate question of whether she lives or dies, her case may well have the salutary effect of demonstrating to the elites who want the right to kill oneself embedded into law that there is another side to the debate that is going to be heard.